CoRe - European Competition and Regulatory Law Review

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Adina Claici, Peter Davis, Gerhard Dijkstra

European Competition and Regulatory Law Review, Volume 8 (2024), Issue 1, Page 4 - 16

In this paper, we consider the economic analysis that will be required in foreign subsidy reviews. We believe that the regime is right to adopt a case-by-case approach and that the European Commission’s analysis should be structured using well-defined theories of harm since doing so will (i) help focus the Commission’s analyses on what matters; and (ii) help reduce the risk of potentially significant error costs associated with over- or under-enforcement. The Foreign Subsidies Regulation (FSR) refers to a potential, non-exhaustive list of ‘indicators’ which it proposes to use to determine whether the foreign subsidy would distort the internal market. In this paper we provide an initial exploration of the proper role for said indicators by considering four potential theories of harm that foreign subsidies could trigger. Not all indicators will be relevant for all theories of harm, and, more generally, we illustrate the potential for theories of harm to distinguish the indicators that are relevant from those that are not. We also discuss (i) empirical evidence relating to the prevalence of foreign subsidies in different sectors of the EU economy and (ii) the importance of theories of harm for structuring evidence collection with the potential challenges and solutions when applying economic analysis to consider causality (whether the foreign subsidy distorted competition), and the magnitude – if any – of a foreign subsidy’s effects on market outcomes. Keywords: FSR; Foreign Subsidies; theory of harm; competition distortion

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